19.1 The definitions we use in these terms are as follows:
“Additional Fees” means our fees and expenses for providing you with any Additional Services.
“Additional Services” means any services which we agree to provide you from time to time which are not completing Set-Up or the Available Services.
“Agreement” means the legally binding agreement between you and us for services which comes into existence in line with these terms and incorporates these terms (as updated from time to time), any documents referenced within these terms, the relevant Order Form and if applicable any Solutions Overview Document.
“Authorised Users” means your employees, agents and independent contractors who are authorised by you to use the Services and the Materials.
“Available Services” means services, products, tools and/or solutions which we will provide you with or make available which are set out in the Order Form together with any help and support services within the scope set out in these terms and any migration of Customer Data to the RedEye Customer Data Platform which we agree to undertake.
“Client Data” means any Personal Data Processed by us on your behalf.
“Confidential Information” means any technical or commercial know-how, specifications, processes, or initiatives which either of us receives from the other, or information either of us receives about the other’s business, affairs, customers, clients, suppliers, plans or market opportunities which are of a confidential nature and any other information of a confidential nature received.
“Customer Data” means any data (including personal data) about your customers, users of the Customer Websites or people on the Customer Databases.
“Customer Databases” means your customer database(s) in relation to which we provide you with the Services (and which may sync with the RedEye Customer Data Platform).
“Customer Websites” means your website(s) in relation to which we provide you with the Services, as indicated on the relevant Order Form.
“Data Breach” shall have the meaning given in condition 11.9.
“Data Controller” means a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed, or such other meaning as set out in the Data Protection Law.
“Data Protection Law” means prior to their repeal, the Data Protection Act 1998 and Regulation (EU) 2016/679 (the “General Data Protection Regulation” or “GDPR”); and the Data Protection Act 2018.
“Data Protection Legislation” means all applicable data protection and privacy legislation, regulations, guidance, and codes of practice, including:
- the Data Protection Law and all connected privacy laws and regulations;
- any secondary legislation pursuant to the Data Protection Law; and
- any guidance or codes of practice issued by Working Party 29, the European Data Protection Board, or the Information Commissioner from time to time (all as amended, updated, or re-enacted from time to time).
“Data Subject” means an individual who is the subject of personal data, or such other meaning as set out in the Data Protection Law.
“Effective Date” means the date on which an Order Form is accepted by us in line with these terms.
“Employment Liabilities” means all costs, losses, proceedings (including any applicable Court or Tribunal fees), actions, claims, demands, liabilities, damages and obligations which we incur or are liable for (including our legal costs and expenses) arising out of or in connection with a person’s employment and/or its termination and/or any claim for a failure to consult in relation to a transfer that could be brought by such person or any employee representative on behalf of such person (in each case whether on, before or after such person’s transfer).
“Excluded Issues” has the meaning given in condition 6.5.
“Fees” means any Set-Up Fees, Licence Fees and/or Additional Fees.
“GDPR Commencement Date” means the date on which the General Data Protection Regulation is in full force and effect in the United Kingdom.
“Good Industry Practice” means the level of skill and diligence that you may reasonably expect of a service provider in our industry performing similar services, in a similar context and for a similar fee.
“Insolvency Event” means: (i) convening a meeting of creditors or a proposal is made for any composition, scheme or arrangement with creditors; (ii) being unable to pay debts within the meaning of section 123 of the Insolvency Act 1986; (iii) a trustee, receiver or administrative receiver or similar officer being appointed in respect of all or any part of a business or a business’s assets; (iv) a petition is presented or a meeting is convened to consider a resolution (or other steps are taken) for winding-up, other than for a solvent amalgamation or reconstruction; or (v) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed.
“IPR” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Licence Fees” means any recurring fees set out in the Order Form or that we may otherwise advise to you for the provision of the Available Services.
“Live Date” means the date on which we have completed Set-Up and notify you that this has been completed via a confirmation email.
“Loss” means any loss, cost, expense, damage, or claim arising under or in connection with our Agreement, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise.
“Materials” means any documents, guides, videos, reports or other materials belonging to us or which we provide or make available to you in connection with the Services, including User Guides and any Tags that we provide you or place on the Customer Websites.
“Order Form” means your order for Services, completed using our order form, which contains details of the Services which you have requested from us.
“Personal Data” means data which relate to a living individual who can be identified either from those data alone, or from those data and other information, which is in the possession of, or is likely to come into the possession of, the data controller, or such other meaning as set out in the Data Protection Law.
“Processing” shall have the meaning set out in the Data Protection Law (and “Process” and “Processed” shall be construed accordingly).
“Processor” or “Data Processor” shall have the meaning set out in the Data Protection Law (and “Process” and “Processed” shall be construed accordingly).
“Processing” in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including organisation, adaptation or alteration of the information or data; retrieval, consultation or use of the information or data; disclosure of the information or data by transmission, dissemination or otherwise making available; or alignment, combination, blocking, erasure or destruction of the information or data; or such other meaning as set out in the Data Protection Law and “Process” and “Processed” shall be construed accordingly.
“RedEye Customer Data Platform” means the data platform which we manage and which we use to provide you with the Services in relation to the Customer Data (and which may sync with a Customer Database).
“Renewal Period” means any renewal period described in condition 2.1.
“Services” means completing Set-Up, the Available Services and any Additional Services.
“Set-Up” means the configuration of the Available Services which we need to do in order to make them available to you.
“Set-Up Fees” means any fees set out in the Order Form or otherwise agreed in writing for Set-Up.
“Solutions Overview Document” means the scoping other specification document(s) issued by us to describe the Services in specific detail and which shall form part of this Agreement.
“Subscription Term” means the thirty six (36) month term (or such other duration as agreed on the relevant Order Form) of the Agreement starting from the Live Date together with any subsequent Renewal Period.
“Supervisory Authority” means the Information Commissioner’s Office in the United Kingdom and/or such other supervisory body as may be appropriate to the Processing and/or Data Subjects in question.
“Tags” means any cookies or web-tags that we provide you or place on the Customer Websites or which you are required to develop or place on the Customer Websites to enable us to provide the Services.
“Third Party Technology” means any software, tools, code, hardware or other technology which is not our own proprietary technology.
“Transfer Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 or equivalent in any other jurisdiction.
“User Guides” means any user guides, e-learning materials, documentation, instructions or acceptable use policies which we provide you with from time to time in relation to your set-up or use of the Services, including set-up and use of Tags.
“Virus” means anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
19.2 In these terms: (i) the headings are included for convenience only; (ii) the expressions “including”, “include”, “in particular”, “for example” and any similar expressions shall not limit the preceding words; (iii) words in the singular shall include the plural and vice versa, references to any gender shall include all genders and references to legal persons shall include natural persons and vice versa; (iv) references to any law or regulation will, unless the context otherwise requires, be construed as including references to any amended and/or replacement statute or statutory provision; (v) references to “writing” and “written” shall include electronic communication by email; (vi) reference to “business days” shall mean any day, other than a Saturday, Sunday or public holiday in England; and (vii) to the extent of any conflict between these terms (as updated from time to time) and any documents referred to in these terms, the following order of precedence shall apply:
a) the Order Form;
b) the data processing provisions at condition 11 of these terms;
c) the remainder of these terms;
d) the Solutions Overview Document